Delhi District Court
Smt. Davinder Kaur Chawla vs Sh. Mahesh Chandra Jain on 22 September, 2018
Davinder Kaur Chawla V. Mahesh Chandra Jain
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 403/2017
UNIQUE CASE ID NO.: 609555/16
IN THE MATTER OF :
Smt. Davinder Kaur Chawla
W/o Sh. M.S. Chawla
R/o Flat No.104,
Lok Nayak Appartments,
Sector9, Rohini,
Delhi110085. ....Plaintiff
VERSUS
1. Sh. Mahesh Chandra Jain
S/o Sh. M.L. Jain
2. Smt. Indu Kant Jain
W/o Sh. Mahesh Chandra Jain
Both R/o 2529, Chamanwara,
Tilak Bazar, Delhi110006.
ALSO AT:
Bardhman Palace,
Near Bus Stand,
Firozabad (U.P.) ....Defendants
Suit No. 403/2017 Page 1 of 37
Davinder Kaur Chawla V. Mahesh Chandra Jain
SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT, CAN
CELLATION AND PERMANENT INJUNCTION
Date of institution of the Suit : 28/01/2005
Date on which Judgment was reserved : 25/08/2018
Date of Judgment : 22/09/2018
JUDGMENT
By way of present judgment, this court shall adjudicate upon suit for specific performance of contract, declaration and per manent injunction filed by the plaintiff against the defendants.
CASE OF THE PLAINTIFF AS PER PLAINT Succinctly the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under:
(a) The defendants were allotted plot no. 288, Pocket No. CIII, Sector No. 28, measuring 60 sq. Mtrs. In Rohini Phase IV Res idential Scheme by the Delhi Development Authority vide Al lotment letter dated 01/09/2003 on the premium of Rs.3,71,520/, which was to be paid in 3 installments. The defendants deposited the first installment on 04/11/2003 and the remaining 2 installments were payable in the year 2004. On 17/12/2003, the defendants entered into an agreement to sell all their rights in the above plot to the plaintiff for a sale consideration of Rs.1,30,000/. In token of the same, an Suit No. 403/2017 Page 2 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain agreement to sell and purchase dated 17/12/2003 was duly executed by the parties and by getting the full sale considera tion of Rs.1,30,000/, a receipt was duly executed by the de fendants the same day. To facilitate the plaintiff in the sale/ transfer, the necessary documents such as General Power of Attorney, Special Power of Attorney, Will and Affidavit etc. were also executed by the defendants in favour of the plaintiff the same day. The Agreement to Sell and Purchase contains the following relevant clauses: "4) That the first party shall get no claim, title or in terest in the said plot and the second party has be come sole and absolute owner and is at liberty to utilise the same for in any manner.
7) That whenever and wherever presentation of the first party will be required for the completion of any acts, deeds and things regarding the said plot, the first party will execute and present for the same on his convenient at the expenses of the Second Party.
8) That all the dues, taxes, installments (if any) till the date of this agreement shall be paid by the first party and thereafter by the second party.
9) That the second party can get the said plot mu tated in his/ her own name in any Govt. or revenue records of the concerned department on the basis of this Agreement.
10) That all dues, demands, lease money unearned increments transfer fees and/or any other charges to be levied thereafter regarding of said plot shall be paid and borne by the second party.
Suit No. 403/2017 Page 3 of 37Davinder Kaur Chawla V. Mahesh Chandra Jain
11) That the first party will cooperate in all the for malities for the transfer of the said plot in favour of the second party as and when permissible, how ever all the levies, dues, taxes, outgoing, unearned increase amount, lease money etc. at the time of transfer shall be paid by the second party.
12) That if either party violated the terms and con ditions laid down in the agreement to sell, the ag grieved party shall be entitled to get the said trans action to complete through the court of law under the suit for specific performance at the cost and ex penses of the defaulting party.
(b) The plaintiff deposited with the DDA both the remaining in stallments of the plot, the second installment amounting to Rs.1,85,760/ on 02/01/2004 and the third installment amounting to Rs.55,728/ on 11/06/2004 and the other req uisite amounts and other formalities at the relevant times.
(c) The plaintiff has received a notice dated 03/01/2005 from de fendant no.1 stating that he had not sold the plot to the plain tiff but got a loan only and that the defendants have cancelled the GPA, SPA and Wills dated 17/12/2003, as executed by the defendants in favour of the plaintiff, which cancellation is void, the act of the defendants is illegal and it may cause seri ous injury to the plaintiff.
(d) The notice of the defendant no.1 is fraudulent, based on wrong facts and is indicative of dishonest intention of the de Suit No. 403/2017 Page 4 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain fendants. In fact, by getting the full sale consideration, the de fendants have been left with no right or interest in the suit plot and besides it, they are duty bound to perform their part of the agreement in relation to possession, lease deed and transfer of the plot in favour of the plaintiff.
(e) The plaintiff has come to know that the defendants are in touch with some property dealers of the locality and are nego tiating with them to again sell the suit plot, though after re ceipt of the full sale consideration of the plot from the plain tiff, the defendants are left with no right or interest in the suit plot.
(f) The plaintiff requested the defendants to refrain from commit ting the illegal acts of attempt to cheat the proposed buyers as well as the plaintiff and to withdraw their notice dated 03/01/2005 and to perform their part of the agreement i.e. to sign the requisite documents in relation to getting of posses sion and execution of lease deed of the plot but they are adamant.
(g) The defendants have no legal right to cancel any document as executed by them in favour of the plaintiff on 17/12/2003 re lating and relevant to the above agreement of sale and pur chase, such as GPA, SPA and Wills etc. and thus, the notice of the defendants and the alleged cancellation of the GPA, SPA and Wills have no bearing on the rights of the plaintiff.
Suit No. 403/2017 Page 5 of 37Davinder Kaur Chawla V. Mahesh Chandra Jain
(h) By issuing notice dated 03/01/2005, the defendants have challenged the very agreement to sell and purchase including the arbitration clause and have made their intention clear that they would not honour/ remain bound by the terms of the agreement, which has necessitated for the plaintiff to in voke the jurisdiction of the Civil Court under the provisions of the Specific Relief Act.
(i) The defendants ought to be directed to honour the agreement to sell and purchase and thereby to perform their part of the agreement to execute necessary documents for getting of pos session, execution of lease deed and transfer of the plot in the name of the plaintiff, whenever the occasion arises, in favour of the plaintiff.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT Summons for settlement of issues were issued to the de fendants and the defendants have filed their joint written statement in the present case. Succinctly, the case of the defendants is as un der:
(a) The suit is not properly verified. The defendants have not got the possession of the suit premises till date. The present suit has been filed without any cause by the plaintiff.
(b) The defendant no.1 is businessman and defendant no.2 is the wife of defendant no.1. The defendants got allotted the suit premises through draw launched by DDA on Suit No. 403/2017 Page 6 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain 11/06/2003, measuring area 60 sq. yds. and defendants re ceived letter from DDA on 01/09/2003 and defendants paid Rs.1,17,261/ excluding interest amount over deposit amount Rs.5,000/ to the DDA Department.
(c) The defendants took loan of Rs.1,30,000/ from the plaintiff through Sh. R.C. Jain on orally agreed rate of interest being the defendants in financial crisis due to business losses and plaintiff accordingly paid loan of Rs.1,30,000/ through Mr. R.C. Jain and Mr. R.C. Jain asked the defendants to execute some documents regarding legal formalities of loan, hence, the question of unpossessed plot to sell does not arise.
(d) The suit of the plaintiff is without site plan. The plaintiff has concealed the material facts and information from the court.
(e) On merits, the parawise reply has been given by the defen dants to the plaint of the plaintiff by denying the allegations / contentions of the plaintiff. It has been stated that the first installment was paid by the defendants. Sh. R.C. Jain and the plaintiff are known to the defendant and the defendants requested to Shri R.C. Jain to arrange loan of Rs.1,30,000/ as the defendant no.1 got a heavy loss in his business, then the plaintiff in the presence of Sh. R.C. Jain paid loan of Rs.1,30,000/ by way of draft dated 16/12/2003 on 17/12/2003 and plaintiff and Sh. R.C. Jain asked to the defendants to execute some loan repayment documents and accordingly, defendants signed every document as defen Suit No. 403/2017 Page 7 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain dants being needy persons and plaintiff also took allotment letter etc. as security for repayment of loan and they assured to the defendants that as soon as the defendants will return the loan amount alongwith interest, as orally agreed, then the plaintiff will return the original documents of allotment of property in suit.
(f) The defendants have not received possession of the suit premises till date then, how defendants can sell the suit premises.
(g) The defendants deposited amount of second installment on 12/08/2004 amounting to Rs.1,85,750/ with DDA as the DDA officials threatened to the defendants to cancel their al lotted plot.
(h) On 28/08/2004, the defendant no.1 alongwith his brother approached to return the loan amount of Rs.1,30,000/ as interest amount and also requested the plaintiff to return the original documents of the suit premises, then the plaintiff and Sh. R.C. Jain intimated to defendant no.1 and his brother about their dishonest intention and sell documents which were fraudulently executed by the plaintiff and Sh. R.C. Jain with malafide intention. Plaintiff and Sh. R.C. Jain also threatened and abused the defendant no.1 and his brother and also threatened to the family of defendant no.1 to face dire consequences and plaintiff threw one photocopy of all documents on the mouth of defendant no.1 and his Suit No. 403/2017 Page 8 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain brother regarding sell of unpossessed suit premises, then the defendants came to know the dishonest intention of the plaintiff and Sh. R.C. Jain and the defendants cancelled GPA, SPA, Will on 24/08/2004, which was fraudulently got executed by the plaintiff with the collusion of Sh. R.C. Jain.
(i) Due to the illegal acts of the plaintiff and Sh. R.C. Jain, the defendant sent legal notice dated 03/01/2005 for payment of loan and returning the original documents lying in the cus tody of the plaintiff but plaintiff neither replied the legal no tice nor returned the original documents. The plaintiff ille gally and unlawfully got executed sell documents in her favour with the collusion of Sh. R.C. Jain to grab the suit premises.
(j) The defendants have full liberty to sell the property in ques tion after getting the possession from DDA. It has been prayed by the defendants to dismiss the suit of the plaintiff with heavy cost.
REPLICATION AND ISSUES Plaintiff has filed the replication controverting the allega tions/ contentions in the written statement of the defendants and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were framed vide order dated 10/04/2008:
1. Whether the defendants had taken a loan of Rs.1,30,000/ from the plaintiff? OPD Suit No. 403/2017 Page 9 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain
2. Whether the plaintiff is entitled for a decree of specific perfor mance of the agreement as prayed in clause (a) of the plaint? OPP
3. Whether the plaintiff is entitled for declaration for cancella tion of deeds i.e. GPA, SPA and will as prayed in clause (b) of the plaint? OPP
4. Whether the plaintiff is entitled for injunction as prayed in prayer clause (c) of the plaint? OPP
5. Relief.
EVIDENCE OF THE PLAINTIFF AND DEFENDANTS AND DOCU MENTS RELIED UPON BY THEM:
Plaintiff, in order to prove her case, led plaintiff evidence and got examined herself as PW1. PW1 has filed her evidence by way of affidavit wherein she reiterated and reaffirmed the contents of the plaint. PW1 was crossexamined by counsel for the defendants. PW1 in her testimony has relied upon the documents:
(i) Agreement to Sell and Purchase as Ex.PW1/2;
(ii) Receipt dated 17/12/2003 s Ex.PW1/2A;
(iii) GPA dated 17/12/2003, SPA, Will and affidavit are collectively exhibited as Ex.PW1/3;
(iv) Agreement to appoint Arbitrator as Ex.PW1/4;
(v) Copies of bank challan regarding 2 nd and 3rd installments are marked as MarkA and MarkB. Suit No. 403/2017 Page 10 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain
(vi) Copies of alleged cancelled GPA, SPA and Will are collectively exhibited as Ex.PW1/6.
(vii) Legal notice dated 03/01/2005 as Ex.PW1/7.
The plaintiff also got examined Sh. Ramesh Chand as PW2 and Sh. Mohinder Singh Chawla as PW3.
The plaintiff also got examined Sh. Sukhvir Singh, UDC, LSB, Rohini Branch, CBlock, 1st Floor, Room No. 111, Vikas Sadan, DDA, INA, New Delhi as PW4, who proved on record the Challans of payment received by the DDA as Ex.PW4/1 and Ex.PW4/2.
The plaintiff also got examined Sh. Samir Vats, Data En try Operator, Sub Registrar OfficeVI, Pitam Pura, Delhi as PW5 who proved on record the documents which were registered with the office of Sub RegistrarVI, Pitam Pura, Delhi as Ex.PW5/A to Ex.PW5/E. The plaintiff also got examined Sh. Inderjeet Singh, Offi cer from PNB, Prashant Vihar Branch, Delhi as PW6, who filed on record the letter Ex.PW6/1 issued by the Sr. Manager on behalf of the Chief Manager of the said branch to authorize him to produce the original documents in this case. Statement of account for the period 02/04/1997 to 04/09/2004 (02 pages) of saving account no. 34143 in the joint names of Ms. Devinder Kaur Chawla and Sh. Mo hinder Singh was proved as Ex.PW6/2, which was issued by the Pitampura Branch. The draft application form dated 01/01/2004 was proved as Ex.PW6/3. The cash order of this draft was proved Suit No. 403/2017 Page 11 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain as Ex.PW6/4. The cheque dated 01/01/2004 as Ex.PW6/5. The cheque dated 10/06/2004 as Ex.PW6/6. The cash order dated 10/06/2004 as Ex.PW6/7 and the draft/ MT application form as Ex.PW6/8.
The defendants have examined defendant no. 1 as DW1 but no documents were filed by the defendants in the present case and the same were not on record.
This court heard the final arguments as advanced by Ld. counsel for the plaintiff and the opportunity of the defendants for fi nal arguments had been closed, although, Ld. counsel for the de fendants had filed written submissions/ arguments on record. I have perused the material available on record. ISSUE WISE FINDINGS ISSUES NO.1 TO 4
1. Whether the defendants had taken a loan of Rs.1,30,000/ from the plaintiff? OPD
2. Whether the plaintiff is entitled for a decree of specific perfor mance of the agreement as prayed in clause (a) of the plaint? OPP
3. Whether the plaintiff is entitled for declaration for cancella tion of deeds i.e. GPA, SPA and will as prayed in clause (b) of the plaint? OPP
4. Whether the plaintiff is entitled for injunction as prayed in prayer clause (c) of the plaint? OPP The aforesaid issues no.1 to 4 are interrelated and inter connected to each other and accordingly they are decided together.
Suit No. 403/2017 Page 12 of 37Davinder Kaur Chawla V. Mahesh Chandra Jain WHETHER TRANSACTION BETWEEN THE PARTIES WAS LOAN OR SALE AND PURCHASE OF THE SUIT PROPERTY WRITTEN ARGUMENTS OF DEFENDANTS The defendants took loan of Rs.1,30,000/ (Rupees one lack thirty thousands only) from the plaintiff through R.C. Jain on orally agreed rate of interest, being the defendants in financial crisis due to business losses end plaintiff accordingly paid loan of Rs. 1,30,000/ through Mr. R.C. Jain end Mr. R.C. Jain asked to the defendants to execute some documents regarding legal formalities of loan, hence question of unpossessed plot to sell does not arise.
That first installment was paid by the defendants. Shri R.C. Jain and plaintiff are known to the defendants and they re quested to Shri R.C. Jain to arrange loan of Rs. 1,30,000/ as the deponent was facing financial crisis in his business then the plain tiff in presence of Shri R.C. Jain paid loan of Rs. 1,30,000/ by way of Draft dated 16.12.2003 on 17.12.2003 and plaintiff and Shri R.C. Jain asked to the defendants to execute some loan repayment documents and accordingly the defendants signed every document as insisted by the plaintiff and Shri R.C. Jain as they being needy person end plaintiff also took allotment letter etc. as security for re payment of loan and plaintiff and Shri R.C. Jain assured to the de fendants that as soon as they will return the loan amount along with interest as orally agreed then plaintiff will return the original documents of allotment of property in suit.
Suit No. 403/2017 Page 13 of 37Davinder Kaur Chawla V. Mahesh Chandra Jain That the plaintiff has not specifically mentioned in her cross examination on which basis she has paid a sum of Rs.1,30,000/ but only stated that she had given Rs.1,30,000/ to the defendants by way of draft dated 17.12.2003, besides the said amount, she has not given any money to the defendants. This fact cannot prove that the said amount was paid by the plaintiff in re spect of the Plot No. 288, Pocket CIII, Sector28, Rohini, Delhi, measuring 60 sq. yds. Till date neither the plaintiff has taken back the loan amount of Rs. 1,30,000/ from the defendants not re turned the original documents of allotment of plot/ property in suit in spite of several requests and demands of the defendants. FINDINGS OF THE COURT The onus to prove issue No.1 was upon the defendants. In order to prove said issue the defendants had initially filed the Af fidavit of Kailash Nath Jain i.e. attorney and brother of the Defen dant No.1 and attorney made the statement on behalf of the defen dants that the defendants would not examine themselves in this case but later on when the Plaintiff objected, then the defendants submitted that they would examine both the defendants but they have examined only defendant No.1. The defendants have not ex amined even the attorney and brother of defendant No.1 Shri Kailash Chand Jain, whose affidavit they have filed.
The defendant No.1 during cross examination conducted on 23.08.2017 had categorically admitted that he was working as Manager in Vardhman Hotel for last about 78 years and prior that Suit No. 403/2017 Page 14 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain he was running the firm in the name of M/s Mahesh Enterprises in Delhi address and aforesaid firm was later on closed 810 years ago. The defendant No.1 further categorically admitted that he is M.A. passed. The defendant No.1 with malafide intention submitting that he has little knowledge of the English language after categorically admitting that he is M.A. passed. The defendant No.1 has further stated/admitted in the cross examination that his brother Sh. Kailash Chand Jain had introduced the Plaintiff. This has totally demolished the story/stand of the defendants which they have taken in the written statement to the effect that "Shri R.C.Jain and Plaintiff are known to the defendants and the defendants requested Shri R.C. Jain to arrange loan of Rs.1,30,000/ as the defendant No.1 got a heavy losses then the plaintiff in presence of Shri R.C.Jain paid loan of Rs.1,30,000/ by way of Draft dated 16.12.03 on 17.12.2003. This story has been further demolished when PW2 Shri R.C.Jain has appeared and supported the sale and purchase transaction between the plaintiff and defendants. The relevant portion of Para No.2 of the Plaint is reproduced hereinbelow: "On 17/12/2003, the defendants entered into an agreement to sell all their rights in the above plot to the plaintiff for a sale consideration of Rs.1,30,000/. In token of the same, an agreement to sell and purchase dated 17/12/2003 was duly executed by the parties and by getting the full sale consideration of Rs.1,30,000/, a receipt was duly executed by the defendants the same day. To fa cilitate the plaintiff in the sale/ transfer, the nec Suit No. 403/2017 Page 15 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain essary documents such as General Power of Attor ney, Special Power of Attorney, Will and Affidavit etc. were also executed by the defendants in favour of the plaintiff on the same day....
The Para No.5 of the Preliminary Objection is repro duced as under: "5. The answering defendants took loan of Rs.1,30,000/ (Rupees One Lac thirty thousand only) from the plaintiff through Sh. R.C. Jain on orally agreed rate of interest being the defendants in financial crisis due to business losses and plaintiff accordingly paid loan of Rs.1,30,000/ through Mr. R.C. Jain and Mr. R.C. Jain asked the defendants to execute some documents regarding legal formalities of loan, hence, the question of un possessed plot to sell does not arise, hence present suit is not maintainable."
Therefore, the entire stand to deny the transaction of Sale and purchase was the oral agreement of loan Rs.1,30,000/, which the defendants have utterly failed to prove on record. The ex ecution of the documents was not denied in the written statement and even the signatures were categorically admitted in the written statement and also by DW1 defendant No.1 during cross examina tion. The Plaintiff has proved the aforesaid documents including the Registered General Power of Attorney, Special Power of Attorney, will (Total five registered documents on 17/12/2001) - Exhibit PW 1/3 (colly.) by examining as many as 6 witnesses i.e. PW1 to PW6.
In the cross examination of 21.09.2017, the defendant No.1 has further categorically admitted that he was not aware Suit No. 403/2017 Page 16 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain about the contents of D1 i.e. Evidence by way of Affidavit. If he was not aware about the contents of D1 then effectively there is no evidence on behalf defendants.
The further question arises for consideration whether by self serving oral evidence in form of Affidavit of defendant No.1, the defendants have been able to prove that they have obtained the loan from the Plaintiff and there was no transaction of sale and purchase of the suit property. It is relevant to mention to reproduce Section 21 of the Indian Evidence Act: "21. Proof of admissions against persons mak ing them, and by or on their behalf. -- Admis sions are relevant and may be proved as against the person who makes them or his representative in interest; but they cannot be proved by or on be half of the person who makes them or by his repre sentative in interest, except in the following cases:--
(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a state ment of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.Suit No. 403/2017 Page 17 of 37
Davinder Kaur Chawla V. Mahesh Chandra Jain (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.
Illustrations
(a) The question between A and B is whether a cer tain deed is or is not forged. A affirms that it is genuine, B that it is forged.
A may prove a statement by B that the deed is gen uine, and B may prove a statement by A that deed is forged; but A cannot prove a statement by him self that the deed is genuine, nor can B prove a statement by himself that the deed is forged. .............."
The aforesaid Section 21 of the Indian Evidence Act, 1872 and particularly illustration (a) vividly depicts that the self serving evidence would be no help to the defendants to prove that the defendants have taken the loan from the defendants and more so in view plethora of documentary evidence executed by the defendants including the registered documents in favour of the Plaintiff. The defendant No.1 has categorically admitted the signatures of the defendants in the said documents. The defendants have not been able to prove even a single documentary evidence to dislodge the case of the Plaintiff. Although, the defendants have relied upon certain documents in the evidence of defendant No.1 but the said documents were not even the part of the record and defendants have failed to prove the same.
Suit No. 403/2017 Page 18 of 37Davinder Kaur Chawla V. Mahesh Chandra Jain The defendants have also taken a categorical stand in the written statement that the defendants deposited amount of second installment on 12/08/2004 amounting to Rs.1,85,750/ with DDA as the DDA officials threatened to the defendants to cancel their allotted plot but the defendants have miserably failed to prove the same. Per contra the Plaintiff have led clinching, convincing and cogent evidence by examining six witnesses whereby the Plaintiff proved not only the payment of Rs.1,30,000/ to the defendants but also the payment of Rs.1,85,760/ on 2.1.2004 and Rs.55,728/ on 11.6.2004 to the DDA by them. Since the property was in the name of the defendants, therefore, the payment was made on behalf of the defendants but the said payments were made by the Plaintiff which was duly proved through the evidences led by them.
I have profit to refer relevant portion of paras No.29 the Judgment of the Hon'ble High Court passed in CS (OS) 84/2009 titled SPARSH BUILDERS PVT. LTD. Versus MAHARISHI AYURVEDA PRODUCTS PVT. LTD decided on 16 th September 2009: "29. The other point that is relevant is whether a party can give oral evidence concerning the intention of the parties at the time of the execution of a document which is not reflected in such document. It was explained by the Supreme Court in Roop Kumar v. Mohan Thedani that Section 91 of the Evidence Act, 1872 (EA) "merely forbids proving the contents of a writing otherwise Suit No. 403/2017 Page 19 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule". It is in really declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it".
"30. It was further explained in paras 17 to 18 in Roop Kumar (supra) as under (AIR SC @) p.2424
25): "17. It is likewise a general and most inflexible rule that wherever written instrument are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Strakie on Evidence p. 648).
18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission Suit No. 403/2017 Page 20 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing."
"31. In para 21 of the Roop Kumar (supra), after discussing the rationale behind Sections 91 and 92 of the EA, it was held as under (AIR SC @ p.2425): "21. The grounds of exclusion of extrinsic evidence are (1) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing. It is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be paced beyond the reach of future controversy, bad faith and treacherous memory."
(Portion is bolded in order to highlight) In view of the settled law as enunciated above and more particularly in respect of Section 91 and 92 of the Evidence Act and further from the discussions made hereinabove, the story/stand of the defendants which they have alleged regarding loan agreement is liable to discarded and the same is hereby rejected. The perusal of the oral and documentary evidence of the Plaintiff reveals and it is clearly established that there was transaction of sale and purchase Suit No. 403/2017 Page 21 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain of the suit property and the Plaintiff has paid entire consideration amount to the defendants, as had been agreed between the parties. CANCELLATION OF DOCUMENTS BY THE DEFENDANTS The defendants have resiled the completed transaction of sale and purchase unilaterally. The defendants have received the complete consideration amount and further Plaintiff has paid the amount of the pending installments to the DDA. The defendants have clandestinely and unilaterally cancelled the registered GPA, SPA and Wills all dated 17/12/2003Exhibit PW1/3 (colly), as executed by the defendants in favour of the plaintiff by means of the document Exhibits PW1/6 (colly.). The said documents Exhibit PW1/3 (Colly.) were executed in order to facilitate to complete the transaction which was executed between the parties vide agreement to sell Exhibit PW1/2. The Agreement Exhibit PW1/2 was not registered as DDA has not offered possession and accordingly, the defendants have not handedover the possession to the Plaintiff but in order to complete the transaction including follow up with the DDA, the registered General Power of Attorney and two special power of attorney and Wills dated 17.12.2003 were executed by the defendants. When the Plaintiff has paid the entire installments to the DDA, then with malafide intention the defendants have cancelled the aforesaid registered documents (collectively exhibited as Ex.PW1/3). The defendants cannot be allowed to cancel the documents unilaterally which were based to facilitate the completed Suit No. 403/2017 Page 22 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain agreement between the parties except the perfecting of title in favour of the plaintiff and obtaining the possession from DDA.
I have also profit to refer the relevant portion of para No.1 of the Judgment passed by the Hon'ble High Court of Delhi in the case titled Praveen Saini Versus Reetu Kapur & Anr., 2018 SCC Online Del 6500 : "1. As Court of law, considering the society that we live in today, there are a flood of cases where each case seeks to out do the other case so far as dishonesty is concerned. Dishonest litigants have no qualms in going to the extremes of dishonesty not only to prejudice the opposite side in litigation but also put the system of litigation itself to question only because procedural matters and the system of adjudication on account of pendency of heavy backlog is taking considerable time of Courts. The present is a fit case on account of complete and outright dishonesty of the appellant..............."
(Portion bolded in order to highlight) The defendants have also taken specific stand that since the property was leasehold property and even the possession not of fered by the DDA therefore the suit for specific performance is not maintainable. The Ld. Counsel for the Plaintiff has relied upon paras No. 15 to 17 decision of the Hon'ble High Court in RFA No. Suit No. 403/2017 Page 23 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain 24/2008 decided on 19th April, 2012 titled as B.L.JOSHI & ANR. Versus NITIN JAIN & ANR: "5. The main issues which were decided by the Trial Court with respect to the entitlement to spe cific performance were issue nos. 4 and 5. With re gard to these issues, the Trial Court has held as under: "15. Learned counsel for the defendants has con tended that the suit property was taken by the de fendants on lease basis from the Delhi Develop ment Authority. Suit property cannot be sold to any one without seeking prior permission from the Delhi Development Authority. The agreement to sell Ex.PW1/1 was void document since transfer of suit property was prohibited as per the terms and conditions stipulated in the lease agreement exe cuted between the Delhi Development Authority and the defendants. Thus, according to learned counsel for the defendants, decree for specific per formance cannot be passed. As against this learned counsel for the plaintiffs has contended that there was no complete bar with regard to transfer of a leasehold property. Leasehold prop erty can be transferred by the lessee after seeking permission of the lessor. Defendants are required to obtain requisite permission from the Delhi De velopment Authority and thereafter execute trans fer documents. Defendants were aware that the suit property was a leasehold property and a per mission from the Delhi Development Authority for effecting transfer was required to be taken. Despite this defendants had agreed to sell the suit property to the plaintiffs, therefore, at this stage they can not take any such plea that the suit property could not have been sold. Learned counsel has further contended that a decree of specific performance Suit No. 403/2017 Page 24 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain can be granted in respect of a leasehold property. He has placed reliance on a judgment rendered by the Hon'ble apex Court titled as Shri Vishwa Nath Sharma Vs. Shyam Shankar Goela & Anr. reported in 139 (2007) Delhi Law Times 91 (SC).
16. I have considered the rival contentions of both the parties on the above point and I do not find any force in the contentions of the learned counsel for the defendants. Defendants were aware at the time of executing Ex.PW1/1 that the suit property was a leasehold property and seller is required to take permission from the Delhi Development Au thority before transferring the leasehold property to any third parties. Knowing fully well this fact they executed Ex.PW1/1, therefore, it is for the de fendants to obtain requisite permission from the lessor for sale of the leasehold property. In case the Delhi Development Authority refuses to grant permission the plaintiffs may not be able to en force the decree for specific performance of con tract but that by itself may not bar the Court to pass a decree for that relief. Thus, it cannot be said that a decree of specific performance of the contract cannot be granted in respect of leasehold properties. In para 12 of Shri Vishwa Nath Sharma's case, judgment cited supra, the Hon'ble apex Court has held as under: "The Privy Council in Motilal V. Nanhelal, AIR P.C. 287 laid down that if the vendor had agreed to sell the property which can be transferred only with the sanction of some Government authority, the Court has jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanc tion is forthcoming, to convey to the purchaser within a certain time. This proposition of law was Suit No. 403/2017 Page 25 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain followed in Mrs. Chandnee Widya WAti Madden V. C.L. Katiyal, AIR 1964 SC 978, and R.C.Chandlok V. Chuni Lal Sabharwal, AIR 1971 Sc 1238. The Privy Council in Motilal's case (supra), also laid down that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the vendee. Permis sion from the Land and Development Officer is not a condition precedent for grant of decree for specific performance. High Court relied upon its decision in Mrs. Chandnee Widya Wati madden Vs. Dr. C.L. Katial (supra), and Maharo Saheb Shri Bhim Singhji V. Union of India, AIR 1961 SC 234m to substanti ate the conclusive. IN Mrs. Chandnee Widya (supra), this Court confirmed the decision of the Punjab and Haryana High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale, the plaintiff may not be able to enforce the decree for specific performance of the contract but that was not a bar to the Court passing a decree for that relief. The same is the position in the recent case. If after the grant of the decree of specific performance of the contract, the Land and Development Officer refused to grant permission for sale and decree holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract."
I have also profit to refer the paras No.8 and 12 of the Judgment passed by the Hon'ble High Court of Delhi in RFA No. 73/2018 decided on 24th January, 2018 titled as M/s MADHAN Suit No. 403/2017 Page 26 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain AND COMPANY & ORS. Versus PUNJAB & SIND BANK & ORS., which are as follows:
8. The stand of the DDA before the trial court was that the appellants/defendant nos. 1 to 3 and re spondent no. 1/plaintiff have violated the terms of lease deed dated 2.6.1977 because they entered into the agreement to sell in violation of the terms of Clause 4(a) of the lease deed because no prior permission was taken for transfer of the suit prop erty by the appellants/defendants nos. 1 to 3 to the respondent no.1/plaintiff. This stand of the DDA was clearly wholly misconceived and baseless inasmuch as Clause 4(a) bars the execution of the sale deed or a transfer document or any document of transferring ownership rights in the suit prop erty and that this Clause 4(a) obviously does not prevent an agreement to sell being entered into. It is trite that in case a seller refuses to perform a contract/agreement to sell for an immovable prop erty, and a suit for specific performance is filed by the proposed buyer, then a decree is passed that the proposed seller will execute the sale deed after taking the necessary permissions as required from the competent authority, and which permissions are required as a prior event for transferring of the immovable property. Merely because there is re quired a prior permission to sell the immovable property, and which is not taken prior to the filing of the suit for specific performance, does not mean that the suit will not be maintainable because con tract of such a nature is a contingent contract and that at the time of the passing of the decree in the suit for specific performance the courts will direct taking of permission from the competent authority as held by the Supreme Court in the case of Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Ka Suit No. 403/2017 Page 27 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain tial and Others, AIR 1964 SC 978. Therefore, DDA was completely unjustified in contending that there took place any sale or that any sale deed was entered into between the appellants/defendant nos. 1 to 3 and respondent no. 1/plaintiff because there is only an agreement to sell and there is no sale/conveyance/transfer document.
12. As a result of the aforesaid discussion, the fol lowing conclusions can safely be drawn:
(i) There was a contract being an agreement to sell entered into between the appellants/defendant nos. 1 to 3 and the respondent no. 1/plaintiff when the respondent no. 1/plaintiff gave its accep tance letter Ex. PW1/4 dated 30.3.1977 accepting the offer terms of the appellants/defendant nos. 1 to 3 as contained in Ex.PW1/3 dated 8.1.1977 and 15.3.1977 for selling the suit property.
(ii) Appellants/defendant nos. 1 to 3 have already received Rs. 12,25,000/ out of the total sale con sideration of Rs. 12,50,000/ way back in around the year 197778 and appellants/defendant nos. 1 to 3 had acted pursuant to the agreement to sell by constructing a building on the suit plot and handing over the suit plot and the building there on to the respondent no. 1/plaintiff. The respon dent no.1/plaintiff had done all that was required to be done on its part under the contract showing that it was ready and willing to go through with the agreement to sell.
(iii) Permission was applied for by the appellants/defendant nos. 1 to 3 in terms of Clause 4(a) of the lease deed dated 2.6.1977 of DDA with the appellants/defendant nos. 1 to 3, and that DDA though objected in giving permis Suit No. 403/2017 Page 28 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain sion yet at no point of time an order was ever passed refusing to grant permission.
(iv) Contracts which require grant of previous per mission by an authority before sale of an immov able property, such contracts are contingent con tracts, and while decreeing suits for specific perfor mance for such contracts, in addition to the direc tion of execution of sale deed directions are issued that the proposed seller will take the necessary permission of the competent authority for selling of the property vide Mrs. Chandnee Widya Vati Madden (supra). Additionally, I note that in case a proposed seller refuses to apply for permission, then after passing of a decree, in execution pro ceedings there is a procedure provided in terms of Order XXI Rule 32 CPC whereby Courts appoint Court Commissioners to take necessary permis sions or do all other acts which are required for ex ecution of the sale deed.
(v) Defence/objections raised by DDA have no co relation to the intent and purpose of Clause 4(a) of the lease deed, for DDA to refuse to grant permis sion to sell the suit property.
(vi) There cannot be frustration of the contract be ing the agreement to sell entered into by the appel lants/defendant nos. 1 to 3 with the respondent no. 1/plaintiff, inasmuch as frustration would have been if there was an order passed by the DDA refusing to grant permission which legally had be come final, and admittedly there is no order passed by DDA refusing to grant permission.
(vii) Trial court by the impugned judgment has en sured that different situations and scenarios are taken care of whether it is required with respect to Suit No. 403/2017 Page 29 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain decree for specific performance or for execution of the sale deed since now the property is freehold, and trial court has as required by law and equity directed the respondent no.1/plaintiff payment of conversion charges and all other charges which have been paid by the appellants/defendant nos. 1 to 3 to DDA for converting the property from lease hold to freehold.
I have also profit to refer the para No.11 of the Judg ment passed in CS(OS) 148/2016 & IA No.6376/2016 (u/O XII R6 CPC) titled as NATIONAL BUILDING CONSTRUCTION COR PORATION Versus SURAJ LAL TIWARI & ORS decided on 19th February, 2018, which is as follows: "11. As far as the plea of the defendants No.1&2 and as urged by the defendant No.2 also appearing in person along with defendant No.1 is concerned, of there being no registered document of title and merely a letter of allotment in favour of the plain tiff, I may mention that the Delhi Development Au thority (Disposal of Developed Nazul Land) Rules, 1981 as the subject land is, provide for a title to be created in the allottee of the land, from the date of allotment on the terms prescribed in the Rules and contained in the lease to be executed. Valuable right in land thus comes into existence on date of allotment and which is a title on basis of which the allottee can institute a suit for recovery of posses sion. This question is no longer res integra and ref erence in this context may be made to K.K. Birla Academy Vs. DDA MANU/DE/1156/2004, Delhi Development Authority Vs. Pushpendra Kumar Jain (1994) Supp. (3) SCC 494 and Delhi Tamil Suit No. 403/2017 Page 30 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain Education Society Vs. Directorate of Education 2012 SCC Online Del 1767.
The relevant portion of Section 13 of the Specific Relief Act is also reproduced as under: "13. Rights of purchaser or lessee against per son with no title or imperfect title.--(1) Where a person contracts to sell or let certain immov able property having no title or only an imper fect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:--
(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;
(b) where the concurrence of other person is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a con veyance by other persons is necessary to vali date the title and they are bound to convey at the request of the vendor or lessor, the pur chaser or lessee may compel him to procure such conveyance;................."
The bare perusal of the aforesaid Judgments and afore said Section 13 specifically clause (b) even if there is imperfect title the purchaser can get it validated. The parties have executed PW 1/3(colly.) specifically for the said purpose in the form the regis Suit No. 403/2017 Page 31 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain tered General Power of Attorney, Special Power of Attorneys and Will were executed in order to give the purchaser right to validate the title including to take possession from the DDA but as submit ted above the defendants after payment to the DDA by the Plaintiff have clandestinely cancel the documents unilaterally by executing PW1/6 (Colly.).
The DW1 has submitted in his affidavit by way of affi davit that defendants have full liberty to sell the property in ques tion after getting the possession from DDA. However, later on in the same evidence the defendant No.1 i.e. DW1 have mentioned that the possession letter issued by DDA as Ex. DW1/3 but no docu ment has been produce on record and therefore the said document was not exhibited during Examination in Chief. Therefore, as per version of the defendants, the defendants have obtained the posses sion vide Exhibit DW1/3 but they have not placed on record the said document.
The Plaintiff would be entitled get the possession from the Defendants if they have received from DDA otherwise the Plain tiff shall be at liberty to approach the DDA for possession and fur ther the Plaintiff would also be entitled to follow up the DDA for val idating the title of the suit property in view aforesaid documents i.e. Exhibit PW1/3 (colly.) in performance of the aforesaid Contract. However, the DDA shall act in accordance with their rules, regula tions and byelaws for possession and perfecting the title of the suit property in accordance with law. After validating and perfecting the Suit No. 403/2017 Page 32 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain title the necessary Sale Deed, if required, would be executed in favour of the Plaintiff by the defendants. QUESTION OF PREPETUAL INJUNCTION In the evidence of DW1 it has been categorically sub mitted that defendants have full liberty to sell the property in ques tion after getting the possession from DDA. The conduct of the de fendants which is demonstrated above, there is definitely threat to the Plaintiff that the defendants may not create any third party right or part with the possession of the suit property to some third party. The defendant was not able to shake the testimony of the witnesses of Plaintiff on material particulars. Considering overall facts and circumstances of the present case and on the discussion made hereinabove, the Plaintiff has also been able to prove this Is sue by cogent and convincing evidence.
Accordingly, the cumulative effect of the pleading, evi dence of the parties and aforesaid Judgments and from the discus sions as adumbrated above, the issue No.1 to 4 are decided in favour of the Plaintiff and against the defendant in favour of Plain tiff.
RELIEF:
From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER Suit No. 403/2017 Page 33 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain (I) a decree of Declaration is passed in favour of the Plaintiff and against the defendants, thereby declaring [Exhibit PW1/6 (colly.) documents] to following effect:
(a) One document of Cancellation of General Power of Attor ney dated 24.8.2004 [Exhibit PW1/6 (Colly.)] is hereby revoked and cancelled. Consequently General Power of Attorney dated 17.12.2003 [Exhibit PW1/3 (colly.)] exe cuted by Shri Mahesh Chandra Jain and Smt. Indu Kant Jain in favour of Smt. Davinder Kaur Chawla regis tered as document no.47464 in Book No.4 Volume No.5488 on pages 195 to 197 registered on 17.12.2003 with SubRegistrar VI, Pitampura, Delhi is declared to be valid and subsisting for all intends and purposes.
(b) Two documents i.e. Cancellation of Special Power of At torney dated 24.8.2004 [Exhibit PW1/6 (Colly.)] are hereby revoked and cancelled. Consequently Two Spe cial Power of Attorneys both dated 17.12.2003 [Exhibit PW1/3 (colly.)] executed by Shri Mahesh Chandra Jain and Smt. Indu Kant Jain in favour of Smt. Davinder Kaur Chawla registered as document no.47465 in Book No.4 Volume No.5488 on page 198 registered on 17.12.2003 and document no.47466 in Book No.4 Vol ume No.5488 on page 199 registered on 17.12.2003 with SubRegistrar VI, Pitampura, Delhi are declared to be valid and subsisting for all intends and purposes.Suit No. 403/2017 Page 34 of 37
Davinder Kaur Chawla V. Mahesh Chandra Jain
(c) One Cancellation of Will dated 25.8.2004 [Exhibit PW 1/6(colly)] executed by Shri Mahesh Chandra Jain is hereby revoked and cancelled. Accordingly, Will dated 17.12.2003 [Exhibit PW1/3 (colly.)] registered as docu ment no.48938 in Book No.3 Volume No.2296 on page 76 registered on 17.12.2003 with SubRegistrar VI, Pita mpura, Delhi is declared to be valid and subsisting for all intends and purposes.
(d) One Cancellation of Will dated 25.8.2004 [Exhibit PW 1/6(colly)] executed by Shri Smt. Indu Kant Jain is hereby revoked and cancelled. Accordingly, Will dated 17.12.2003 [Exhibit PW1/3 (colly.)] registered as docu ment no.48939 in Book No.3 Volume No.2296 on page 77 registered on 17.12.2003 with SubRegistrar VI, Pita mpura, Delhi is declared to be valid and subsisting for all intends and purposes.
(II) The defendants are further restrained to cancel the aforesaid documents Exhibit PW1/3 (colly.) which are declared to be valid and subsisting and consequently the concerned SubRegistrar shall not receive any such doc ument for cancellation of the documentsExhibit PW 1/3 (colly.) which are declared to be valid and subsist ing.
(III) a decree of specific performance of contract in terms of Agreement to Sell and Purchase Exhibit PW1/2 dated Suit No. 403/2017 Page 35 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain 17.12.2003 in respect of suit property bearing plot no. 288, Pocket No. CIII, Sector No. 28, measuring 60 sq. Mtrs. In Rohini Phase IV Residential Scheme by the Delhi is passed in favour of the Plaintiff and against the defendants. Consequently, the Plaintiff would be entitled get the possession from the Defendants if they have received from DDA otherwise the Plaintiff shall be at liberty to approach the DDA for possession and further the Plaintiff would also be entitled to follow up the DDA for validating the title of the suit property in view aforesaid documents i.e. Exhibit PW1/3(colly.) in performance of the aforesaid Contract i.e. Agreement to Sell and Purchase Exhibit PW1/2. However, the DDA shall act in accordance with their rules, regulations and byelaws for possession and perfecting the title of the suit property in accordance with law. After validating and perfecting the title the necessary Sale Deed, if required, would be executed in favour of the Plaintiff by the defendants.
(IV) a decree of permanent injunction is passed in favour of the Plaintiff and defendants thereby restraining the de fendants for selling or creating third party interest or parting with possession of the suit property i.e. plot no. 288, Pocket No. CIII, Sector No. 28, measuring 60 sq. Suit No. 403/2017 Page 36 of 37 Davinder Kaur Chawla V. Mahesh Chandra Jain Mtrs. In Rohini Phase IV Residential Scheme by the Delhi.
(V) The cost of the suit is also passed in favour of Plaintiff and against the defendant.
The copy of the Judgment and decree be sent to the SubRegistrar VI, Pitampura, Delhi in terms of Section 31(2) of The Specific Relief Act, 1963 for necessary information and action in ac cordance with Section 31(2) of The Specific Relief Act,1963.
Decreesheet be prepared accordingly in terms of this decision.
Files be consigned to Record Room after due compli ance.
Announced in the open court (ARUN SUKHIJA)
on 22/09/2018 ADJ07 (Central)
Tis Hazari Courts, Delhi
Suit No. 403/2017 Page 37 of 37